Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.

Lord Boyle and Sir Adam Gordon of Dalpholly
v.
Pollock of that ilk and Lawrence Crawford of Jordonhhll

Date: 7 February 1700

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February 7.—I Reported David Lord Boyle and Sir Adam Gordon of Dalpholly against Pollock of that ilk and Laurence Crawford of Jordonhill. Kelburn, now Lord Boyle, and Dalpholly having got a tack from the Exchequer of the additional excise on liquors imposed by the Parliament 1693, they gave a subtack of it, in so far as concerned the town of Glasgow, to James Crawford, for £19,000 of tack-duty, for whom Pollock and Jordonhill became cautioners. The sub-tacksman being dead, and about £200 sterling of the tack-duty yet resting, the two principal tacksmen charge the cautioners; who suspend on this reason, That, beside the excise of ale, there is likewise set to them a duty of two shillings Scots upon every pint of strong waters, whether brewen of malt or not, excepting only what is made of wine; and subsume that a great quantity of brandy or rum was made, within the time of their tack, of the molosses of the sugar manufactory in Glasgow; and whereof they having craved the excise-duty, the ownners of the manufactory suspended before the Exchequer, and were declared free on this ground, That the manufactory had a privilege and exemption prior to the imposition of this additional excise, and so was neither derogated from nor taken away by the Act 1693; so that a considerable branch of the sub-tacks man's profit being cut of by this decreet, his cautioners must have allowance and abatement of the remaining tack-duty effeiring to their loss.

Answered for the principal tacksmen, chargers,—That they oppone the tack, whereby they subset no more than what they had right to themselves; and either the duty of this molosses brandy was comprehended in their tack, or not: if not, then the sub-tacksmen had no right to it; if it was contained therein, they cannot be liable for the eviction; because it neither arises from any fact or deed of the setters, nor from any defect of their right, but from an interlocutor of the Exchequer, assoilyieing them; against which they cannot be obliged to warrant their sub-tacksman, there being no fault either in themselves or in their right.

Replied,—By the subtack it is evidently set to them; for they have right to the excise of all liquors, whether made of malt or not, providing it be not composed of wine, which exception confirms the rule in all other cases; and it is as plain as words can make it, that rum is neither made of malt nor wine, but of molosses, and so necessarily falls under the tack. And it may be remembered that lately George Mackenzie got abatement against Sir Thomas Kennedy on account of the diminution and failing of the brewing by the supervenient law. And what if a tenant's roum were inundated or wholly overblown with sand? this total sterility would liberate from the tack-duty; and the Lords gave a remissiv canonis on account of the vastation by the English invasion in 1650, as Dirleton observes, 20th November 1667, Tacksmen of the Customs against Greenhead. Yet the law says, Si universitats corporis vendit a sit per aversionem, such as a whole flock, ob res particulares evictas agi non potest.

The Lords doubted much of this case, whether any abatement could be pled or not. Some thought the decreet of Exchequer, though a sovereign court, was not res judicata, that being mainly applicable to the judicatories deciding property: Others said this decreet was res inter alios acta quoad the cautioners; and it was queried if the principal tacksmen could have an ease on account that this rum was exemed; and if they could not, why should their sub-tacksmen have it, unless they had profit on other parts and subjects of their tack through the rest of the kingdom. The Lords resolved to hear the case in their own presence.

February 20.—The Lords having heard this cause, they repelled the reasons of suspension, and found no abatement due.

Vol. II. Page 87.